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Lawyer Discusses: Derek Chauvin Invokes 5th Amendment Right Not to Testify

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TRANSCRIPTION OF VIDEO:

Hello! This is attorney Jeremy Hogan and Welcome to Legal Briefs! This week the Chauvin case here in the USA was wrapping up and we will likely have a verdict next week. If you recall, Police officer Derek Chauvin knelt on George Floyd’s neck and Chauvin declined to testify citing the 5th Amendment to the U.S. Constitution.

Today, I am going to tell you what THAT is all about, why you aren’t required to testify against yourself and WHY a lawyer might tell their client not to testify at trial.

So last week, former police officer Derek Chauvin declined to testify in his own trial, invoking his Fifth Amendment right against self-incrimination. He was charged with 2nd degree murder – that’s an intentional killing, 3rd degree murder – that’s a killing with a “depraved mind” like selling someone laced heroin and they die from overdose, and lastly manslaughter which is an accidental but negligent killing – like your driving 105 on the freeway and crash and the other person dies.

This charges against the police officer stem from his kneeling on Mr. Floyd something like this – for 9 and a half minutes.

Over the 2 week trial there were a number of witnesses and when it came time for the Defendant himself to testify?

And THAT is the proper way to phrase it – you don’t “Plead the 5th” because to plead something is to say it, instead you “invoke” your rights contained in the 5th Amendment and then this is the instruction the judge will give the jury.

American law proposes a high burden on the government before the government can imprison a person or punish a person for a crime. Specifically, that means that the accused is presumed innocent until the GOVERNMENT can prove guilt BEYOND a reasonable doubt. So it’s the GOVERNMENTS job to prove its case. It’s not the job of the accused to defend him or herself. So technically, an accused can sit there and not say a word and is still presumed innocent until the GOVERNMENT can proves its case. And his choice NOT to testify CANNOT be used against him.

And the United States is not alone in this.  108 countries out of 150-some countries have some form of this rule and it generally stems from English Common Law and the protection against self-incrimination.  And the Common Law rule was a reaction to the way the English government had gone about prosecuting individuals and “obtaining” confessions and such. I was able to go back in time and actually find some video of an older English interrogation and here it is. I miss Game of Thrones. In any case, that was that was the origins of the 5th Amendment – a response to certain old-school tactics to obtain confessions.

So, knowing that, why do Defendants nowadays often invoke the 5th amendment?  The cynical view – although perhaps true – is that they don’t testify because they are guilty. And certainly that plays a part. But ALSO we don’t want to put our client on the stand because it takes the focus off whether the Government has proven its case and instead turns its focus on whether they believe the accused. The case it not suppose to hinge on whether the jury feels that the accused is a bad person, or whether the accused is believable.

Some Defendants can and do “save” themselves by testifying. But that’s usually because the evidence is so overwhelming, you have no choice and it’s a hail Mary pass. If you think back to the OJ Simpson trial – at the time OJ was a loved persona – he was good looking, charismatic, and even THEN he didn’t testify in his own defense. Because the dangers are just too great that you will say something under cross-examination that really hurts the case. Yes, OJ tried on the glove but that fell under “demonstrative evidence” and not testimony.The best part about watching Cochran’s closing argument now is that you can see the audience members are in awe and absolutely mesmerized by him. That was a real talent.

The problem with Chauvin testifying is that he wouldn’t have much to add to his defense because everything in the case was on video. He couldn’t get up on the stand and say “wasn’t me.”  So the ONLY purpose of putting Chauvin on the stand would be to make the jury like him.  Because the video is not good for him. Youd’ put him on to have him say “I’m sorry this happened, I only wanted to restrain him.. I certainly didn’t mean to hurt him.” 

So my take on it is that the Defense team coached him what to say, had someone cross -examine him and ..he just didn’t come across well. And then you decide he has nothing to add to his defense – he can’t add to the medical testimony and WHAT he did is all on video.  So, with that, you make the decision to invoke the 5th and not testify.

So, the Defense will go all-in on the medical causation defense.  What do you think the verdict will be – let me know in the comments. 2nd degree murder, 3rd degree murder, manslaughter, or even not guilty.

Thanks for watching and remember even in life sometimes its better to remain silent IF you have nothing constructive to add.

Thien-Vu Hogan
Thien-Vu Hogan
Attorney Thien-Vu Hogan is the founding and managing partner of Hogan & Hogan.